UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-2005

HOPE DORN,

Plaintiff - Appellee,

v.

THE TOWN OF PROSPERITY,

Defendant – Appellant,

and

CRAIG NELSON, individually as an officer with the Town of 

Prosperity Police Department,

Defendant.

Appeal from the United States District Court for the District of 

South Carolina, at Anderson. R. Bryan Harwell, District Judge. 

(8:06-cv-02571-RBH)

Argued: December 1, 2009 Decided: March 18, 2010

Before KING and SHEDD, Circuit Judges, and John Preston BAILEY, 

Chief United States District Judge for the Northern District of 

West Virginia, sitting by designation.

Reversed by unpublished opinion. Judge Bailey wrote the 

opinion, in which Judge King and Judge Shedd joined.
2

Andrew Lindemann, DAVIDSON & LINDEMANN, PA, Columbia, South 

Carolina, for Appellant. John Christopher Mills, Columbia, 

South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
3

BAILEY, Chief District Judge:

The Town of Prosperity, South Carolina, appeals a judgment 

rendered against it on the basis that there can be no false 

arrest under South Carolina law where the arrest was effectuated 

pursuant to a facially valid arrest warrant. We agree and 

reverse the judgment.

I.

This case arises out of the arrest of the plaintiffappellee, Hope Dorn, on May 25, 2005, on a warrant for the 

municipal offense of obstructing a police officer. The 

affidavit for the warrant, which was sworn by Defendant Officer 

Craig Nelson of the Town of Prosperity Police Department, cites 

an incident that occurred two days prior, on May 23, 2005. On 

that evening, Dorn had been to dinner with her fiancee, Kevin 

Lathrop, and her child. While returning to her residence, Dorn 

and Lathrop had an argument. Dorn and her child left the 

vehicle and began to walk home. Lathrop continued, at a high 

rate of speed, in the direction of Dorn’s residence, had an 

altercation with Dorn’s neighbors, and then left the area after 

spinning his tires and briefly losing control of his vehicle. 

The neighbors contacted the Town of Prosperity Police 

Department, and Officer Nelson responded.
4

At the scene, Dorn approached Officer Nelson and spoke with 

him. What occurred between Dorn and Nelson is disputed. Dorn 

testified that she identified herself to Officer Nelson and that 

she identified Lathrop as the probable driver of the vehicle. 

Dorn further testified that Lathrop called her cell phone and 

that she requested Lathrop to return to the scene to speak with 

Nelson. In contrast, Nelson testified that Dorn refused to 

identify herself beyond giving her first name and place of 

employment. Nelson further testified that Dorn spoke to Lathrop 

by cell phone and advised him not to return to the scene or he 

would be arrested.

On the following day, May 24, 2005, Officer Nelson sought 

an arrest warrant on the municipal offense of obstructing a 

police officer. This warrant was issued by the Municipal Judge. 

Dorn was subsequently arrested by deputies with the Newberry 

County Sheriff’s Department. The charge was later nolle prossed 

by the Police Chief.

II.

Ms. Dorn filed this action for money damages in district 

court bringing three causes of action: (1) a 42 U.S.C. § 1983 

Fourth Amendment claim against Defendant Nelson, individually, 

for arresting and prosecuting Dorn without probable cause; (2) a 
5

pendent common law false arrest claim against DefendantAppellant the Town of Prosperity (“Town”) for arresting Dorn 

without probable cause; and (3) a pendent common law malicious 

prosecution claim against the Town and/or Nelson, individually, 

for prosecuting Dorn on the charge of obstructing a police 

officer. However, prior to submission of the case to the jury, 

Dorn withdrew her malicious prosecution claim. With regard to 

the two remaining claims, the jury returned a verdict in favor 

of Dorn on the common law false arrest claim and in favor of 

Nelson on the Fourth Amendment claim. Judgment in the amount of 

$23,500.00 was entered against the Town. Thereafter, the Town 

filed a post-trial motion for judgment as a matter of law on the 

common law false arrest claim. The motion was denied by the 

district court. The Town filed a timely appeal.

III.

Inasmuch as the arresting officer was found not liable on 

the federal civil rights claim, the issue presented by this 

appeal is whether the arrest, pursuant to a facially valid 

warrant, can satisfy the state law requirements of false arrest.

“At common law, allegations that a warrantless arrest or 

imprisonment was not supported by probable cause advanced a 

claim of false arrest or imprisonment. ... However, allegations 
6

that an arrest made pursuant to a warrant was not supported by 

probable cause, or claims seeking damages for a period after 

legal process issued, are analogous to the common-law tort of 

malicious prosecution.” Porterfield v. Lott, 156 F.3d 563, 568 

(4th Cir. 1998) (quoting Brooks v. City of Winston-Salem, 85 

F.3d 178, 181-82 (4th Cir. 1996)).

In Brooks, an action under 42 U.S.C. § 1983, “we held that 

a public official cannot be charged with false arrest when he 

arrests a defendant pursuant to a facially valid warrant. At 

most, such an official can be pursued through a cause of action 

for malicious prosecution.” Porterfield, 156 F.3d at 568.

The distinction between malicious prosecution and false 

arrest in this situation is whether the arrest was made pursuant 

to a warrant. “As a general rule, an unlawful arrest pursuant 

to a warrant will be more closely analogous to the common law 

tort of malicious prosecution. An arrest warrant constitutes 

legal process, and it is the tort of malicious prosecution that 

permits damages for confinement pursuant to legal process. On 

the other hand, wrongful warrantless arrests typically resemble 

the tort of false arrest.” Calero-Colon v. Betancourt-Lebron, 

68 F.3d 1, 4 (1st Cir. 1995) (citing Singer v. Fulton County 

Sheriff, 63 F.3d 110, 115-16 (2d Cir. 1995)).
7

In a 2008 opinion, the South Carolina District Court 

reiterated the standards for a cause of action for false arrest 

under 42 U.S.C. § 1983:

A claim that a warrantless arrest is not supported by 

probable cause constitutes a cause of action for false 

arrest as opposed to malicious prosecution. See

Brooks v. City of Winston-Salem, 85 F.3d 178, 181 (4th 

Cir. 1996). As a result, a false arrest claim must 

fail where it is made “pursuant to a facially valid 

warrant.” Porterfield v. Lott, 156 F.3d 563, 568 (4th 

Cir. 1998); see also Brooks, 85 F.3d at 181. It is 

undisputed that the plaintiff's arrest was made 

pursuant to a facially valid warrant. The plaintiff 

has not challenged either the fact that a magistrate 

issued a warrant for his arrest or that it was 

facially valid. In fact, he has confirmed that a 

warrant was so issued and that he was arrested 

pursuant to it. At most, therefore, the plaintiff can 

allege only “a cause of action for malicious 

prosecution” based on an alleged lack of probable 

cause for seeking and issuing the warrant in the first 

instance. Porterfield, 156 F.3d at 568; see also

Brooks, 85 F.3d at 181 (“However, allegations that an 

arrest made pursuant to a warrant was not supported by 

probable cause, or claims seeking damages for the 

period after legal process issued, are analogous to 

the common-law tort of malicious prosecution.”)

Medows v. City of Cayce, No. 3:07-409, 2008 WL 2537131 at *3

(D.S.C. June 24, 2008) (emphasis in original). See also

Richmond v. Pieterse, No. 8:08-3173, 2009 WL 2781972 at *4

(D.S.C. Aug. 27, 2009).

South Carolina appears to agree. In 1900, the Supreme 

Court of South Carolina held that false arrest proceeds upon the 

theory that the plaintiff has been arrested without authority of 
8

the law, while an action for malicious prosecution proceeds upon 

the theory that the plaintiff has been lawfully arrested under a 

warrant charging a criminal offense, but that such prosecution 

is malicious and without probable cause. Whaley v. Lawton, 35 

S.E. 741, 743 (1900) (citing McConnell v. Kennedy, 7 S.E. 76 

(1888)).

In Bushardt v. United Inv. Co., 113 S.E. 637 (1922), the 

South Carolina Supreme Court stated that:

It has been definitely decided in this jurisdiction 

that where one is “properly arrested by lawful 

authority,” “an action for false imprisonment cannot 

be maintained against the party causing the arrest.” 

Barfield v. Coker, 73 S. C. 192, 53 S. E. 170; McHugh 

v. Pundt, 1 Bailey, 441; McConnell v. Kennedy, 29 S. 

C. 187, 7 S. E. 76; Whaley v. Lawton, 62 S. C. 91, 40 

S. E. 128, 56 L. R. A. 649. If a lawful arrest has 

been improvidently procured, without probable cause, 

the plaintiff's remedy lies in an action for malicious 

prosecution, in which action the necessary element of 

malice may be inferred as a fact from the want of 

probable cause. Graham v. Bell, 1 Nott & McC. 278, 9 

Am. Dec. 687; Stoddard v. Roland, 31 S. C. 344, 9 S. 

E. 1027; Hogg v. Pinckney, 16 S. C. 400; China v. S. 

A. L. Ry. Co., 107 S. C. 179, 92 S. E. 335. 

113 S.E. at 639.

In the McConnell decision, relied on in Bushardt, the

Supreme Court of South Carolina had explained:

It seems to us that the gist of the action for false 

imprisonment is that one has been restrained of his 

liberty without lawful authority; and, where it 

appears that the restraint or imprisonment complained 

of is under lawful process, the action must 

necessarily fail. It is quite true that one arrested 
9

and restrained of his liberty, even under lawful 

process, may have a cause of action, if it is alleged 

and shown that the prosecution was malicious, and was 

without probable cause, and has terminated; but that 

is a different cause of action, and depends upon 

different allegations and proofs, and the action for 

malicious prosecution must not be confounded with an 

action for false imprisonment.

McConnell, 7 S.E. at 78.

More than fifty years after Bushardt, the Court of Appeals 

held that a claim of false arrest did not lie where the 

plaintiff was arrested pursuant to a warrant. Watkins v. Mobil 

Oil Corp., 313 S.E.2d 641 (S.C. Ct. App. 1984). The Court 

stated:

The dispositive rule of law of this case is well 

stated in Bushardt v. United Inv. Co., 121 S.C. 324, 

113 S.E. 637 (1922). In essence this case holds that 

where one is lawfully arrested by lawful authority, an 

action for false imprisonment cannot be maintained 

against the party causing the arrest.

313 S.E.2d at 642. Accord Manley v. Manley, 353 S.E.2d 312, 

314-15 (S.C. Ct. App. 1987) (“Even if the arrest is 

improvidently procured, the wronged party's remedy lies in an 

action for malicious prosecution.”). 

In 1985, the Supreme Court of South Carolina abolished the 

doctrine of sovereign immunity as it applied to the state and 

all local subdivisions, subject to certain qualifications. 

McCall v. Batson, 329 S.E.2d 741 (1985). 
10

In James v. Fast Fare, Inc., 685 F. Supp. 565, 566-67 

(D.S.C. 1988), the District Court held that where a person is 

arrested by law enforcement personnel pursuant to a facially 

valid warrant, “there can be no cause of action for false 

imprisonment asserted against the party causing the arrest, 

because the arrest has been made pursuant to lawful authority,” 

citing Watkins, supra.

Ms. Dorn relies upon Gist v. Berkeley County Sheriff’s 

Dept., 521 S.E.2d 163 (1999). This is a per curiam opinion from 

the South Carolina Court of Appeals, in which the court reversed 

a grant of summary judgment in favor of the Sheriff’s 

Department. The decision focused on the standard for finding 

liability under the South Carolina Tort Claims Act, § 15-78-

60(3),*

 * “In 1986, the legislature enacted the South Carolina Tort 

Claims Act, S.C. Code Ann. §§ 15-78-10 to -200 (Supp. 1997), 

which waives immunity while also providing specific, enumerated 

exceptions limiting the liability of the state and its political 

subdivisions in certain circumstances. The Tort Claims Act ‘is 

the exclusive civil remedy available for any tort committed by a 

governmental entity, its employees, or its agents except as 

provided in § 15-78-70(b).’” Wells v. City of Lynchburg, 501 

S.E.2d 746, 749 (S.C. Ct. App. 1998).

rather than the elements of a valid claim for false 

arrest. In its decision, the Court of Appeals relied upon two 

cases, both of which cases involved warrantless arrests; Jones 

v. City of Columbia, 389 S.E.2d 662 (1990), and Wortman v. 

Spartanburg, 425 S.E.2d 18 (1992). The decision did not 
11

discuss, nor could the Court of Appeals overrule, the longstanding precedent in South Carolina that there can be no claim 

for false arrest where the arrest is effectuated pursuant to a 

facially valid warrant.

The subsequent case of Law v. South Carolina Dept. of 

Corrections, 629 S.E.2d 642 (2006), falls into the same trap. 

The decision, relying on Gist, finds that the fundamental issue 

in determining the lawfulness of an arrest is whether there was 

probable cause to make the arrest. This is true in the 

situation of a warrantless arrest. Again, the decision did not 

discuss, let alone overrule, the long-standing precedent in 

South Carolina that there can be no claim for false arrest where 

the arrest is effectuated pursuant to a facially valid warrant.

Furthermore, in Law, the Court reiterated the elements of a 

false arrest claim. The first element enumerated is “that the 

defendant restrained the plaintiff.” 629 S.E.2d at 651. In the 

present case, the Town of Prosperity did not restrain the 

plaintiff. Rather, the plaintiff was arrested and restrained by 

the Newberry County Sheriff’s Department.

Subsequently, the South Carolina District Court, in 

Mitchell v. Cannon, No. 2:07-cv-3259, 2009 WL 824202 at *5 

(D.S.C. March 26, 2009), stated that “a plaintiff may not 

maintain a cause of action for false imprisonment where he has 
12

been arrested by law enforcement pursuant to a valid arrest 

warrant. Jones v. City of Columbia, 389 S.E.2d 662, 663 (S.C.

1990) (‘An action for false imprisonment cannot be maintained 

where one is arrested by lawful authority.’).”

Finally, in Campbell v. McIlwain, No. 8:09-1156, 2009 WL 

2176241 (D.S.C. July 20, 2009), the District Court reiterated 

the rule that there can be no claim for false arrest where a 

defendant is arrested pursuant to a facially valid warrant and 

noted that “[i]t is not the duty of the arresting officer to 

assess guilt or innocence, but merely to serve the warrant.” In 

its opinion, the Court added that “[a]n arresting officer is 

generally entitled to rely on a facially valid warrant in 

effecting an arrest.” Id. At *4.

Based upon the foregoing precedent, we follow the South 

Carolina rule that there can be no claim for false arrest where 

a person is arrested pursuant to a facially valid warrant. 

Since Ms. Dorn was arrested pursuant to a facially valid warrant 

her judgment against the Town of Prosperity for false arrest 

must be reversed.

REVERSED